Citation Nr: 1236885
Decision Date: 10/24/12 Archive Date: 11/05/12
DOCKET NO. 06-10 988 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to a compensable rating for headaches.
REPRESENTATION
Veteran represented by: Vietnam Veterans of America
ATTORNEY FOR THE BOARD
Russell P. Veldenz, Counsel
INTRODUCTION
The Veteran, who is the appellant, served on active duty from November 1996 to April 2004.
This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision, dated in December 2005, of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.
In August 2008, the Veteran withdrew her claim for an initial rating for retropatellar pain syndrome with chondromalacia of the left knee.
In March 2009, the Board remanded the claim. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998).
FINDINGS OF FACT
1. Before April 3, 2006, headaches were not manifested by prostrating episodes occurring on average once a month over the last several months.
2. From April 3, 2006, to September 28, 2011, headaches were manifested by frequent severe headaches, as often as twice a week, with evidence of characteristic prostrating attacks and accompanying photophobia and phonophobia; there is no evidence of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.
3. From September 28, 2011, migraine headaches are not manifested by prostrating episodes occurring on average once a month over the last several months.
CONCLUSIONS OF LAW
The criteria for an initial compensable rating before April 3, 2006, have not been met, the criteria for an initial rating of 30 percent from April 3, 2006, to September 28, 2011, have been met; and an initial compensable rating since September 28, 2011, for headaches have not been met. 38 U.S.C.A. § 1155; 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100 (2011).
The Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.
Duty to Notify
Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.
Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006).
In a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated).
The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).
The RO provided pre-adjudication VCAA notice by letter, dated in August 2005, in the underlying claim of service connection. Where, as here, service connection has been granted and the initial disability rating has been assigned, the claim of service connection has been more than substantiated, the claim has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once the claim of service connection has been substantiated, the filing of a notice of disagreement with the RO's decision rating the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claim for an initial compensable rating for a headache disability. Dingess, 19 Vet. App. 473, 490; Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128, 137 (2008).
Duty to Assist
Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records, VA records, and private medical records. The Veteran was afforded VA examinations in October 2005, in March 2006, in July 2006, in April 2008, in July 2009, and in July 2011.
As the VA examination in July 2009 was inadequate, the Board remanded the claim in September 2011 for a new VA examination, which was conducted in September 2011. The Board finds the examinations are adequate as the examinations included a medical history and sufficient findings to rate the disability. 38 C.F.R. § 4.2; see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).
As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Principles of Rating Disabilities
Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7.
The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).
Under Diagnostic Code 8100, migraine headaches with characteristic prostrating attacks averaging one in 2 months over last several months warrant a 10 percent rating. The criteria for a 30 percent rating for migraine headaches are characteristic prostrating attacks occurring on an average of once a month over the last several months. The criteria for a maximum 50 percent rating for migraine headaches are very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The term "productive of severe economic inadaptability" does not require that a veteran be completely unable to work to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004).
Facts
On VA examination in October 2005, the Veteran stated she did not take medication for her headaches. She stated that headaches occurred once every two months and did not last longer than five hours. The examiner specifically noted she did not have prostration. The diagnosis was cluster headaches. The VA examiner characterized the headaches as mild, infrequent, and did not result in a disability.
On April 3, 2006, in her substantive appeal, the Veteran stated she had a headache every one to two months and must wait until she vomits before she experienced relief when the pain gradually ended and she fell asleep a few hours. The headaches incapacitated her ability to move, talk, think, or even stand.
In July 2006, the Veteran was afforded a second VA examination. The Veteran stated that she was experiencing headaches twice a month. The headaches were aggravated by light and sound. The VA examiner concluded that the headaches had become more severe than previously noted at about 2 a month, and when the attacks occurred, the Veteran could not maintain her usual activity.
In October 2006, it was noted that the medication for the Veteran's headaches had quit working and a new prescription medication was written in April 2007.
The Veteran submitted a calendar or diary she kept for July and August 2007 where she recorded her headaches, the duration, and the level of severity. In July 2007, she had two headaches. In August 2007, she had four headaches.
On VA examination in April 2008, the Veteran described cluster headaches or migraine headaches that averaged once a week, usually lasting less than an hour. The pain occurred usually in the occipital area and was a stinging type pain with sharp pain. She also develops watery eyes and a runny nose with occasional vomiting. She denied any weakness or functional loss but when the attacks occurred, she had to lie down until the pain went s away. If the attack happened at work, she stated that she went to her car until the headache went away and then she returned to work.
In January 2009, it was noted that the Veteran had headaches once or twice a month and the current prescription was helpful.
On VA examination in July 2009, it was noted the Veteran had been laid off from her job. She reported severe headaches that happened once a week, which was somewhat of an increase. The headaches were throbbing and resulted in nausea, vomiting, light sensitivity, and sound sensitivity. The diagnosis was migraine headaches with no complications.
On VA examination on September 28, 2011, the Veteran described pulsing or throbbing headache pain, which was worse with physical activity. The headaches lasted less than a day and the frequency of attacks was less than one every two months. The attacks were not prostrating. She described the worse attacks as occurring once or twice a year that the examiner characterized as prostrating where she takes her medication, falls asleep, and wakes up several hours later. The headaches did not impact her ability to work. The VA examiner stated that the headaches were currently medically managed.
Analysis
Before April 3, 2006, the Veteran had headaches averaging less than once a month and the examiner specifically noted there was no prostration. In the absence of characteristic prostrating attacks occurring on an average of once a month over the last several months, the findings do not more nearly approximate or equate to the criteria for a compensable rating under Diagnostic Code 8100.
Between April 3, 2006, and the last VA examination of September 28, 2011, the evidence establishes that the Veteran averaged severe, intense headaches which averaged more than once a week. With these intense headaches, the Veteran was unable to effectively function and could not maintain her usual level of activity. As she put it, she would be incapacitated in her ability to move, talk, think, or even stand. If one occurred at home, she would have to lie down and if one occurred while at work, she had to isolate herself in her car until the attack subsided. The Board finds that the evidence satisfies the criteria for an initial rating of 30 percent from April 3, 2006, to September 28, 2011, that is, the evidence more nearly approximates a disability picture where the headaches are productive of characteristic prostrating attacks occurring on an average of once a month over the last several months.
The evidence clearly describes frequent prostrating attacks, but severe economic inadaptability was not shown. The Veteran's statements and the findings on the VA examinations show that while the Veteran's headaches were described as frequent and severe, the only work she missed occurred when the headache started at work and she would have to sit in her car until the headache subsided and then she returned to work. The Veteran remained employed until her employer's economic circumstances caused her to be laid off and there is no evidence of job action against her, such as a demotion, reduced pay, or unsatisfactory job performance. Other than the times she had to sit in her car, there is no evidence of absenteeism. Therefore, without evidence the headaches were productive of severe economic inadaptability, the frequency of the headaches alone does not more nearly approximate or equate under 38 C.F.R. § 4.7 to the criteria for a 50 percent rating under Diagnostic Code 8100.
Since September 28, 2011, the Veteran's prescription medication has managed her headaches, including the frequency of the headaches. The headaches occurred less than once every two months and prostrating headaches occurred once or twice a year.
In the absence of characteristic prostrating attacks occurring on an average of once a month over the last several months, the findings do not more nearly approximate or equate to the criteria for a compensable rating under Diagnostic Code 8100 since September 28, 2011.
The preponderance of the evidence is against the claim for higher staged ratings at any time during the appeal period, and the benefit-of-the-doubt standard does not apply. 38 U.S.C.A. § 5107(b).
Extraschedular Consideration
Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating.
The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria.
If the criteria reasonably describe the disability level and symptomatology, then the disability picture is encompassed by the Rating Schedule, and the assigned schedular rating is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).
Comparing the Veteran's current disability level and symptomatology to the Rating Schedule, the degree of disability is encompassed by the Rating Schedule and the assigned schedule rating is adequate and no referral to an extraschedular rating is required under 38 C.F.R. § 3.321(b)(1). The schedular criteria for headaches specifically address frequency and severity.
In other words, the Board finds that the rating criteria reasonably describe the Veteran's disability and symptomatology, and the Veteran does not have any symptomatology not already encompassed by the Rating Schedule.
Total Disability Rating for Compensation Based on Individual Unemployability
In May 2010, the RO denied a claim for a total disability rating for compensation based on individual unemployability, and the Veteran did not appeal the decision. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability or the claim is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase).
ORDER
An initial compensable rating for headaches before April 3, 2006, is denied.
An initial rating of 30 percent from April 3, 2006, to September 28, 2011, is granted, subject to the law and regulations, governing the award of monetary benefits.
And initial compensable rating for headaches since September 28, 2011, for is denied.
____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs